Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Examination of Witnesses (Questions 260-279)


16 OCTOBER 2003

Q260  Lord Archer of Sandwell: I do not know whether I misheard you. I thought you said that it was not intended to change the position under the 1920 Act in relation to individuals.

Mr Alexander: The point I was making was that in terms of the position of the individual in relation to the Act, if anything, the position has been strengthened since the 1920 Act, in the sense that by drawing attention to the position of the individual it would not diminish the prohibition or the limitation on the use of emergency powers set out in the 1920 Act but strengthen the position of the individual. That was one area where it was felt that even greater clarity could be brought in the 1920 Act but it would certainly be contrary to my view if the new statutory construction that was provided on the face of the Draft Bill were seen in any way to diminish the safeguards that were actually written into the 1920 Act.

Q261  Lord Archer of Sandwell: The 1920 Act actually says, ". . . provided that no such regulations shall make it an offence for any person or persons to take part in a strike or peacefully to persuade any other person or persons to take part in a strike." In what form do those words reappear in this Bill?

Mr Alexander: The Bill declares that the regulation may not prohibit or enable the prohibition of a strike or other industrial action. In that regard, we are confident that the safeguard is in place. When we then sought advice from parliamentary counsel, they advised that the additional words as narrated in the original 1920 Act were not material in terms of the effect of the interpretation of this legislation on the rights of individuals.

Q262  Lord Archer of Sandwell: Perhaps we should discuss it with parliamentary counsel. If there is a strike, notwithstanding that the regulations cannot make it unlawful, there does not appear to be anything in the Bill which would protect a person who in some way gave assistance to the strike, does there?

Mr Alexander: The advice that we have received is that the effect of the clauses drafted is identical to that contained in the 1920 Act in that it sweeps up the position of the individual within the terms of the clause used in the Draft Bill.

Q263  Lord Lucas of Crudwell and Dingwall: All the Secretary of State would have to do by his first regulation is to amend this Bill. Then there is no problem. You can prohibit strikes as much as you like. The powers are so wide surely that that is the first thing you do if you are inconvenienced by any restriction in this Bill. You amend the Bill itself. Then there is no protection and you have the right to amend or disapply any legislation.

Mr Alexander: The difficulty as in all of these tempting scenarios that you are offering me is to try and reconcile the reality of how a politician would act in such circumstances with the necessary legal safeguards that can be put in place. I cannot say that I am convinced that there would be circumstances in which a Secretary of State so empowered to create regulations would seek to amend the Civil Contingencies Act.

Q264  Lord Lucas of Crudwell and Dingwall: At the end of the day, the only safeguard you are offering is that you are a decent fellow and would not do such a thing.

Mr Alexander: I certainly would not seek to personalise the assurance I gave. In truth, we have to strike a balance and that is not new to this piece of legislation. That has been true of emergency powers legislation both in this country and in many jurisdictions around the world for many years. In that sense, I think we need to have an appropriate and reasonable level of legal caution and a clear eye for what could be circumstances of difficulty but, on the other hand, we need to bring a common sense view to this as well.

Q265  Lord Condon: The Draft Bill is largely silent on the role and any potentially statutory duties of central Government. Who will ensure that central Government itself puts its own civil contingency arrangements in place and that they are up to an adequate standard? Why is there not something like an inspection function in the Bill and/or some requirement to account to Parliament for an annual report or other mechanism?

Mr Alexander: I will try to answer your question in two parts. First of all, in terms of lead responsibility within government the Home Secretary has overall responsibility for the safety and security of the citizens of the United Kingdom. The Cabinet Office, the office that I hold, co-ordinates activity across Government working with the Security and Intelligence Co-ordinator, Sir David Omand, and therefore central Government already, I would clearly argue, has that co-ordinating role. We operate in a range of forums at the national level right up through Cabinet committees to Cabinet itself when the situation warrants it. As the Committee will no doubt be aware, there is DOP(IT)(R) chaired by the Home Secretary. That is the committee which oversees work on consequence management and resilience, which works alongside DOP(IT)(R). That is a committee chaired by the Home Secretary overseeing work on counter terrorism, and there is of course CCC, the Civil Contingencies Committee, which is activated only in times of emergency and oversees the response. A point that is perhaps not well appreciated outside Government is the extent to which it is possible for, and indeed there is precedent for, central Government to draw on the expertise of a range of outside bodies to assist it in that work of central co-ordination and resilience. For example, during the fire-fighters' strike the devolved administrations, the Local Government Association and the emergency services associations all had a place at the table at the CCC. In that sense I am convinced that the work of co-ordination which is necessary has been taken forward. I will come on to your point in terms of reporting to Parliament in a second, but it would also be fair to say that this structure has been arrived at within central Government after a great deal of consideration as to what are the mechanisms and means which can most effectively ensure resilience given the British parliamentary and executive arrangements. I am fully aware that there is a range of different approaches that have been taken in other jurisdictions and in different countries which perhaps better reflect the circumstances and arrangements of government in those countries, but I am convinced that the approach that the British Government has taken, with lead Government departments identified in core areas of responsibility, is the right way forward for the people of Britain. On the second point that you raised in terms of the inspection regime, or the case for reporting to Parliament, it is fair to acknowledge that there is a point in terms of the issue of transparency. We have arrangements in place but I think it is right and important to be clear with local responders as to where they fit in as well as to address questions that may be put to us by the general public. To return to the point I made earlier in terms of the distinctiveness of the British constitution, it is difficult to see how a sensible, meaningful duty could be imposed on central Government by way of statute, but that is not to say that more cannot be done to improve the transparency of central Government frameworks. We are currently within Government exploring what options there might be for some form of structure of reporting on the arrangements. But the point I would make is that again a balance would need to be struck between ensuring, if it were deemed appropriate to Parliament and to the people, that that degree of transparency was achieved, but not at the cost of the need to ensure that those who do not have the interests of the British people at heart are not able to identify areas of potential weakness or vulnerability that would assist them in any endeavours.

Q266  Lord Condon: There is an ad-hocery to the arrangements you have described, and I do not say that in a pejorative sense, just in a factual sense. Do you have any plans to set up more of a standing forum for national resilience, something that would establish standards, procedures, guidelines, or indeed provide a resource of specialists to others who have statutory duties?

Mr Alexander: In terms of the resource specialists, that is certainly already the case and there is a range of examples which perhaps Roger can add to when I conclude my initial answer to your question which show clearly where central Government has worked effectively with local responders to provide that level of resource, expertise and experience. In terms of the charge that the arrangements are ad hoc, that is a charge I would refute. They are entirely consistent with the system of Cabinet Government which has served this country well. I would not wish to pre-judge the thoughts that lie behind your question but there has certainly been one line of criticism that has been directed at the Government suggesting that our seriousness of intent would be demonstrated by the establishment of a Department for Homeland Security. I sincerely believe that the arrangements that have been put in place and that I have described where there are lead Government departments and standing bodies to achieve the degree of co-ordination necessary, provide a far better fit for the system of government we have in the United Kingdom than all of the bureaucratic and cost implications of seeking to take resilience and the work of resilience planning out from the range of different Whitehall departments, corral them together within a single department and place a minister in charge of it. Indeed, I think there would be a grave risk, notwithstanding the diversion of effort and energy that such an approach would take, that it would have the reverse effect from that which would be intended. Given the nature of Cabinet Government in Britain it could actually sideline resilience planning rather than ensure that it is absolutely central to the work that the Home Secretary leads across Government in ensuring the protection of the British people.

  Mr Hargreaves: In terms of whether the structures work and in the way in which they deliver support and guidance to local responders, we have their interests very much at the centre of what we do. They are involved in the processes and that is how we are able to produce guidance like Dealing with Disaster, which does have very wide take-up and is something which local responders themselves want. We also offer a lot of specialist advice from within the frameworks we have already, so, for example, we provide Government liaison officers at terrorist incidents, we provide scientific advice in the event, for example, of a radiological incident, and we provide, again for example, veterinary service advice in the event of an animal epidemic. There is a range of circumstances in which we have already proven that we can take action under the current framework and provide the advice and guidance that people need.

Q267  Kali Mountford: Can I take this a little further because I am thinking about the resilience? I am not disputing that that advice and guidance is available already but, looking to the future, I am concerned that perhaps not everybody in the picture is included. People in this Committee are now somewhat obsessed with water, considering a scenario where, say, the regulator of the water industry, or it could be any of the utilities, ought perhaps to have responsibility and concern about the quality of product which could have been contaminated from a natural source or by a terrorist with some horrible intent. Who would take the authority in that situation because that does not seem to be covered by this? If nobody at a national level has got any responsibility for the planning of those contingencies who is going to take responsibility for that incident?

Mr Alexander: Let me address the general point you raise and then Roger can follow up. First of all, I think it is important to remind ourselves that the focus of this particular piece of draft legislation is the framework for national resilience. It is an attempt to ensure that the framework is in place which identifies in part the distinction that is drawn in Part I of the Bill between co-responders and co-operating responders. All of that being said, this work stands alongside a huge amount of work that is presently being undertaken within Government to ensure that the capabilities are in place for the people of the United Kingdom as they would expect them. In that sense I do not think that in all circumstances the draft legislation is the most accurate guide to the full range of work that is being taken forward across Government. The Home Secretary, as I say, has lead responsibility for the protection of the people of the United Kingdom. In that responsibility he oversees the work which is ensuring the capabilities are in place across a whole range of Government departments; But the lead Government department principle of which I spoke earlier, is absolutely central to this. We believe that the most effective way to ensure that the vast range of possible scenarios that a Committee member could offer to me can be anticipated and addressed, is to ensure that there are designated departments of Government with lead areas of responsibility rather than to have a situation whereby a single Government department, detached often from the mechanisms, the means and the environment of policy over which they would be responsible for dealing with a particular problem. There is a co-ordinating role taken forward by the Home Secretary but it is his job to ensure first of all that the capabilities work is taken forward, (and that work is being taken forward just now across a range of work streams within Government), but, secondly, to use his authority and chairmanship of his committees to ensure that Government departments across a range of different scenarios will be the lead Government department that can bring their particular expertise to bear in a particular circumstance. Perhaps Roger could set out a few of those lead Government departments principles and actions.

  Mr Hargreaves: On the specific water example that you have cited, on DOP(IT)(R), the committee which is responsible for making sure that people have emergency plans in place, DEFRA is represented. DEFRA, in its responsibilities for the water industry, ensures that within the regulatory regime which exists for the water industry there are requirements in terms of emergency planning for those organisations so that on the one hand DEFRA sits at the table and ensures that what the water industry does plug into the wider effort. In terms of making sure that the water industry is aware of the sorts of risks that it might face, the sorts of situations where we might have contaminated water, DOP(IT)(R) is looking at the security risks. DEFRA again is involved in that process. There are two separate committees working alongside each other which ensure DEFRA and in turn the water industry are very much plugged into both the planning and prevention.

Mr Alexander: It is a fundamental question of policy as to whether the people best equipped to anticipate and to address those concerns are the government departments whose main area of policy responsibility covers those scenarios, or whether it would be better to establish, as some suggest, a department for homeland security that would oversee every possible area of work. In that regard, I think we have made the right choice in saying certainly there needs to be strong coordination at the centre but, on the other hand, we need to utilise fully the expertise and the experience of government departments right across Whitehall, given the very wide range of scenarios that could be contemplated.

Q268  Baroness Ramsay of Cartvale: You have given a very full and detailed description of how coordination does take place at the moment in your answers to Lord Condon and Kali Mountford. It is very much a description of the traditional, British way of doing things, as you said was the way that fitted the British government system best. Given that we are looking at situations which demand in many ways fresh thinking, and after all a lot of what is in this Bill is fresh thinking, do you see that there is quite a strong case for a national agency? Let us not call it homeland security because that is an emotive description. We already know of one country that has that. Do you not see that there is a lot of feeling from different quarters that there is the need for a national agency to do all this, plus a legal duty placed on the Secretary of State to ensure national resilience? Would not a national agency be able to ensure regional coordination better than a DTI related official in the regional government offices, or indeed the kind of mechanism that you have already described? I do not want to use the words ad hoc but it is sort of reactive. I know that a lot of these mechanisms also are about planning, forethought and so on, but really it means that when there is a crisis somewhere they all have to be brought together and orchestrated. Do you not think that a national agency, which is not doing anything else except planning and organising that, has quite a lot of points in its favour?

Mr Alexander: With respect, no, in the sense that I think there is a fundamental choice to be made. I believe the government has made the correct choice. Let me try and elucidate on why I would take a counter view to that suggested in your question. Leaving aside the terminology of the department for homeland security, I do not think it is coincidental that that particular model has been adopted in the United States with a presidential system of government. We have a Cabinet system of government here in the United Kingdom and therefore the challenge of framing the government's response to resilience matters I believe needs to reflect that. It is a sincere concern that were we to attempt to corral what is a huge area of work for the government into a single department, notwithstanding the fact that much of the expertise and experience that would need to be brought to bear on the particular circumstances as envisaged rests within a range of different Whitehall departments, I think that would be a less than optimal response by the British government. I think it is also important to recognise that we are attempting to take forward a whole area of work to ensure that each of the concerns are met. For example, the Bill that is before the Committee aims to ensure that there is a framework that is fit for purpose , that reflects the resilience planning that was taking place at local level as well as the emergency powers aspects that we have been discussing before the Committee today. Again, I would emphasise that is only part of the work that is being taken forward across government. There is a great deal of work which has been led by the Home Secretary in recent months and years to strengthen both the counter terrorism work led by DOP(IT)(R) and the resilience work that is led by DOP(IT)(R). I believe it is not an ad hoc response but rather a response that harnesses the strengths of the British Constitutional arrangements whereby expertise, experience and responsibility rest within individual departments and to avoid a situation whereby there are difficulties and confusions as to whether the civil servants, for example, who have the expertise within the water industry should sit within a national agency or rest within DEFRA. There are very practical concerns which an immediate response saying, "This would immediately be the answer" I suggest would be misplaced.

Q269  Baroness Ramsay of Cartvale: If there is to be no national agency, what do you see under this Bill as the role of national organisations such as government departments, the military and the Health Protection Agency, etc?

Mr Alexander: Of course national organisations such as those that you have described will continue to have a key part in responsibilities for both planning for and responding to contingencies that take place. The framing of the Bill that has taken place and the structure of the Bill that we have presented reflects a task based approach, which reflects where responsibilities lie. Where there are national organisations who have local responsibilities, it is appropriate that that is reflected, and they are being recognised for their local response work; but equally where there are core responsibilities which are national it is important that those are reflected. The structure of the Bill sits alongside the structure of government and different parts of that central government response will be reflected in different parts of the Bill.

Q270  Chairman: What is the rationale for basing the regional tier in England on the government offices?

Mr Alexander: The planning structures, we believe, should be mirrored in response. Regions are well established and emergencies should be declared over a significant area as part of the triple lock. We do believe that it reflects the need to align planning procedures and the important work of planning for these contingencies with the capability to respond to them. I do appreciate that there has been a level of concern expressed to this Committee in terms of aspects of the regional arrangements. Before we go into that area of questioning, perhaps it might be helpful for me to elucidate on the thinking behind the government's regional response and the regional tier to this. It is in no way a criticism of the outstanding local response that has been provided by local responders in circumstances of civil contingencies in recent years and in past decades throughout the United Kingdom. Rather, it was born of a recognition that it is possible to strengthen the linkages between central government and local responders in a way that better reflects the needs for both planning and response, given the potential civil contingencies we can anticipate in the years to come.

Q271  Chairman: What happens if an emergency crosses a regional boundary in that case and affects two contiguous districts with contiguous local authorities but different regions?

Mr Alexander: Clearly, there are established protocols in terms of a local response. There is Gold Command, which predates the existence of this piece of legislation as drafted. There would be provision, both in terms of the planning stage and in the response stage, for regional co-operation. I would argue that the scenario you set out strengthens rather than diminishes the case for a regional response because, if there are circumstances in which there is cross-over across regional boundaries and local response boundaries, there needs to be effective coordination at every level. The idea that solely local responders and central government would be better able to respond to a situation in which there is a larger contingency which extends beyond a single region I think is disputable and therefore makes the case for a regional tier.

Q272  Chairman: With emergencies on a geographical basis, if you have more than one regional tier element involved, you are creating a potential barrier to effective and quick action, which is what is necessary in the case of an emergency.

Mr Alexander: That is certainly not the intention and I would dispute that that would be the effect, in the sense that if you look at where there has been something analogous to what we are describing at the moment—although I would draw a distinction between the foot and mouth examples I am about to cite from the emergency powers part of the legislation that we were discussing earlier—there you saw the beginnings of an effective regional response in parts of the United Kingdom that I believe spoke to the merits of being able to frame a regional response to the kind of civil contingencies that we seek to anticipate in the Bill.

Q273  Chairman: Will the regional offices have a role in directing local authorities over their emergency planning?

Mr Alexander: No, is the short answer to that. Local responders will continue to be in the lead. Government offices, we believe, will facilitate the planning phase and offer support and better links to central government, as I sought to describe earlier, during the response phase.

Q274  Chairman: After proclamation of a regional emergency, to whom will a regional nominated coordinator be democratically accountable?

Mr Alexander: The regional nominated coordinator will be accountable through the Secretary of State who in turn is bound by collective responsibility but is accountable to Parliament. By way of explanation, the merit that I see as the Bill presents it at the moment of the regional nominated coordinator is two-fold. They will be able to bring a degree of expertise and coordination at a regional level, but there is also another dimension which is worth bearing in mind, which is that they would be able to be a public voice within that region for the actions that are being taken, both by local responders and central government. In that sense, I think the strength of the regional nominated coordinators would be that they are accountable to Parliament through the Secretary of State certainly, but there is also the practical work that they will be able to do on the ground.

Q275  Lord Brooke of Alverthorpe: I would like to ask some questions on category one and category two responders. I heard that in part you were answering some of these questions when responding to Kali Mountford and Lady Ramsay but I would like to press you again. Is it really possible to have contingency planning without being seen to directly involve the private sector, such as the utilities and energy supply companies and even large employers or undertakings, as was done in the City of London in the mid-1990s? Also, what about voluntary organisations? Where do they fit in?

Mr Alexander: Let me deal with voluntary organisations first and then I will come to the private sector. Our concern in terms of framing the legislation was to ensure that we did not impose legal duties on organisations which, by their character, were unable to necessarily secure a uniform level of provision or service across the entirety of the country. One of the principal rationales of this Bill was to ensure that there was a national framework. I am aware that there are certain voluntary organisations who believe that they can meet that threshold in terms of level of national provision, but equally there are other organisations who do not. There are very contrasting views being offered, as I understand it, between St John's Ambulance and the Red Cross on the issue of the inclusion of the voluntary organisations. I think it is also important to place on record the fact that the list as drafted and presented on the face of the Draft Bill in no way diminishes or should diminish the respect and value that central government places on the contribution of the voluntary services in this area of work. That is both born out of long experience and also the fact that there is scope within the Bill as drafted, we believe, to ensure that where there are effective contributions that can be made by voluntary organisations to civil protection that will continue to be the case. On the point that you made in terms of the private sector, our attempt to draw this distinction between part one and part two, between core responders and cooperating responders, sought to reflect the different characteristics of the response that can be offered. It was an attempt to recognise that there are circumstances in which of course private sector organisations such as the utilities have a very key, important role to play in terms of both preparation for a response to civil contingencies but to avoid what could have been a counter claim made against us that we were seeking to impose unduly heavy burdens on all potential responders and not reflecting the different characteristics of the different responses of private/public sector responders.

  Mr Hargreaves: We thought carefully about which private sector organisations we might include in category two. The Bill as currently framed covers more than 400 private sector organisations, so that is quite a large number of organisations within that sector that we cover. There is no sense of us avoiding including the private sector in what we do. The decision about the voluntary sector was taken on the basis of considerable discussion with that sector. It was their initial view that they thought they should not be included and were happy with that. As the Minister says, there is some disagreement amongst large, voluntary sector organisations about whether or not they should be included, so our negotiations with them continue.

Q276  Lord Brooke of Alverthorpe: Some of us, Minister, were a bit surprised that the BBC was in neither category.

Mr Alexander: It is certainly not our intention—and I choose all of my words before this Committee carefully on the issue of the BBC at the present time extremely carefully—to be in a position where the BBC would somehow be designated as a national or state broadcaster or that even mischievous interpretations of the Bill would allow such a view to be taken. I would say—indeed, I caused some surprise in the Commons a few months back when I made this point on the floor of the Commons—that we do hold in the highest regard the work that the BBC does at regional and local level in supporting the efforts of central and local responders to civil contingencies, and again the fact that they do not appear on the face of the legislation in any way should be read as in any way diminishing the contribution that they make or that we believe they will continue to make to responding to civil contingencies in the future.

Q277  Lord Brooke of Alverthorpe: If I may move on to shire district councils, if they will not have full responsibility for local authority civil protection planning in their area. Why have they been included in category 1 responders? What function do you envisage they and the county councils will undertake respectively?

Mr Alexander: We believe the main civil protection burden will continue to fall on the counties as it does at present but the Bill will allow for clear roles and responsibilities and minimise duplication of effort. We have included districts in category 1 because of their role in delivering key functions such as housing and environmental health. It is right, we believe, that these functions should be part of the planning process for civil contingencies but we share the desire of responders to minimise the potential for duplication of effort. We expect the main civil protection burden to continue to fall, as I say, on the counties.

Q278  Lord Brooke of Alverthorpe: Why does the Bill not include a requirement on central Government to meet the expenditure incurred by all category 1 and 2 responders, irrespective of whether they are in the public, private or voluntary sectors, in planning for civil contingencies and in dealing with emergencies?

Mr Alexander: The scope and the aim of this Bill are to address the framework of civil protection rather than have specific reference to the funding for civil protection. That being said, of course, it remains the position of the Government that we are committed to ensuring that the right level of resource be provided for this area of important work. Substantial new investments have been made into this area of work over recent years but this clearly is a shared endeavour between the public and the private sector with the costs and indeed the benefits of this effective planning being shared between both sectors. The Regulatory Impact Assessment that was carried out showed the burden to be small on the private sector but that the benefits were potentially very large, and in that regard I think it is important that the balance that has been struck in this Bill in reflecting the shared responsibilities is also reflected in terms of the funding.

Q279  Lord Lucas of Crudwell and Dingwall: How are the utilities, for instance, meant to manage their role under this Bill? Do they have to have separate relationships with each local authority in regard to their own particular local plans or will they have some kind of national interface that they can use to rationalise the contribution they have to make?

  Mr Hargreaves: This is one of the points that has come up in the consultation exercise. Some of the utilities are interested to know exactly how the whole system will work in terms of their own engagement. What we do not want is a system where they have to talk to every local authority. That means 400 separate organisations that they have to meet with. Equally, dealing with this on a purely national basis creates problems in terms of operational detail at a local level where many emergencies arise and when many emergencies have to be dealt with. What the Bill will be used to provide for are local resilience forums which are based on police force areas, so a more manageable 40 or so interfaces for utility companies. Of course, utility companies do not always cover the whole country; they tend to cover a region, so realistically perhaps four or five interfaces with the local level for each utility company, which to our mind seems to strike the right balance in terms of the degree of involvement.

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